Jenks v. Terrell

BRICKELL, C. J.

— 1. It is insisted by the appellant that the administrator should have been charged with the personal property owned by the intestate, which passed into the possession of the widow, and was converted by her before the grant of administration. The property was, under the statute of force at the death of the intestate, exempt to the widow and minor children, as its value did not exceed one thousand dollars (Pamph. Acts, 1872-3, p. 64); and she was entitled to retain and use it.

2. The claim to charge the administrator with the rents received by the widow was properly disallowed. These rents (as we understand .the bill of exceptions) issued out of the plantation connected with the dwelling in which the intestate resided at his death ; and to them the widow was entitled, her dower not having been assigned. The administrator could not have recovered them from her, and can not be charged with them. Nor could he have set them off against any claim or demand of the widow for money she may have expended in paying the debts of the intestate. The statute (Code of 1876, § 2238) confers on the widow the unqualified right to keep possession of the dwelling and plantation connected therewith, until dower is assigned her. The object of the statute is, that free from molestation she may take its rents and profits, until the personal representative, or the heir shall become the actor, and assign to her the dower t.o which she is entitled. — Shelton v. Carrol, 16 Ala. 148. And if those rents liad been received by the administrator, the widow could have recovered them from liim. — Perrine v. Perrine, 35 Ala. 644. Having received them, she was entitled to retain them against any claim he could have preferred. An administrator is authorized to institute proceedings for the assignment of dower to the widow. The authority involves the duty of its exercise whenever, from a deficiency of personal assets to pay debts, there is a necessity for him to intercept and take the rents and profits, or to sell the. lands for the payment of.debts. And if for a considerable time he should delay the institution of proceedings for the assignment of dower, suffering the widow to remain in the exclusive pernancy of the rents and profits, he would be guilty of laches in the performance of duty, and liable for the loss resulting to those having rights and interests affected. — Benagh v. Turrentine, 60 Ala. 557. But there is no room for the imputation of laches to the appellee in this respect. All the rents, except the rent accruing for the current year, liad been received by the widow before the grant of administration ; and without delay, after obtaining administration, the appellee, before the expiration of the current year and the falling due of the rent, under an order of the court of probate, made sale of the land. The whole duty resting upon him in reference to the lands was performed by the sale, when it was reported to, and confirmed by the court of probate.

3. The court of probate was in error, in decreeing to the widow compensation, or an equivalent for her dower in the lands. The court is not authorized to decree such' compensation, except when, before the sale of the lands by the personal .representative under the order of the court, the widow files in the office of the judge her consent in writing, that her dower may be sold with the reversion, thereby passing to the pur.chaser the present as well as the future interest in the lands. Code of 1876, §§ 2469-71; Bradford v. Bradford, 66 Ala. 252. The consent was not filed, and if the purchaser has acquired the dower of the widow, it was not by sale made by the administrator. In this connection it is proper to say, that the money paid by the purchaser to induce the widow not to oppose the confirmation of the sale, forms no part of the purchase-money of the lands, and can not be charged to the administrator. The payment may have been gratuitous, without consideration, but it was .to the widow, and in pursuance of an agreement with her; and the money now belongs to her, and is no part of the assets for which the administrator ought to account.

4. Whenever an administrator claims a credit for moneys expended, the burden.of proving its correctness rests upon him, if a contest arises as to its correctness. If the credit is for the payment of a debt contracted or incurred, or claimed to have been contracted or incurred by the intestate, he must prove it by the same degree of evidence the creditor would have been compelled to produce, if he had been compelled to an action for its recovery. — Teague v. Corbitt, 57 Ala. 529. The debt must not only be proved, but also the fact of its payment, if that fact .is put in issue. The mere production of a receipt bearing the signature of the person to whom the payment was made, without proof of the signature, is not evidence of payment. — Savage v. Benham, 11 Ala. 49; Gaunt v. Tucker, 18 Ala. 27. It may be, that, subjected to these rales, there was not sufficient evidence to support each' item of the account j>aid to the widow, Mrs. Breedlove. The contestant, however, made his objection to the account in the form of a general obr •jection to the evidence of Mrs. Breedlove, which the court of probate properly overruled. Such an objection ought not to be entertained, unless the whole evidence to which it is directed., is inadmissible; the court is not bound to take upon itself the duty of separating and distinguishing the parts of the evidence, of a witness which may be admissible, from that which is inadmissible. There is some of the'evidence of the witness clearly admissible, and this general objection to the whole of it was properly overruléd. — -1 Brick! Dig. 886, § 1186. There is no force in the suggestion,'that, as the widow was not the rightful personal representative when these payments were made, she must be regarded as having paid money voluntarily, without a previous request, and without subsequent ratification, which she can not recover. It is true, that money paid by one person for the use of another does not necessarily impose a liability npon the latter; for, as is said, one man can not of his own will pay another man’s debt without his consent, and thereby convert himself into a creditor. But the widow, in making tírese payments, assumed the duty and responsibility of a rightful representative, and, strictly speaking, converted herself into an executor de son tort. While such an executor can not acquire any benefits for himself, yet, he is protected in all acts, not for his own benefit, which the rightful representative could and ought to have done. — Brown v. Walter, 58 Ala. 310; Glenn v. Smith, 20 Am. Dec. 452. If the debts paid by the widow were just and subsisting demands which the rightful representative ought to have paid, she is entitled to stand in the place of the creditor to whom the payments were made, and was properly reimbursed by the appellee.

5. The instruments purporting to be receipts given by the contestant to the widow bear the attestation of a subscribing witness, who was not produced, nor was an account given for his absence. The attesting witness to any species of writing must be called, or his absence accounted for, before other evidence of execution is admissible. — ^-1 Greenl. on Ev. § 569.

Eor the errors noticed, the decree of the court of probate is reversed, and the cause remanded.